RAUL BERROTERAN II, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; FORD MOTOR COMPANY, Real Party in Interest.
S259522
IN THE SUPREME COURT OF CALIFORNIA
March 7, 2022
Second Appellate District, Division One B296639; Los Angeles County Superior Court BC542525
Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Manella* concurred. * Presiding Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief
Opinion of the Court by Cantil-Sakauye, C. J.
We granted review to address a conflict in the Courts of Appeal regarding an exception to the hearsay rule, articulated in
Shortly before trial in Berroteran‘s lawsuit was set to begin, Ford, relying on the interpretation of
After the trial court granted Ford‘s motion, Berroteran sought, and the Court of Appeal granted, a writ of mandate, directing the trial court to issue a new order denying Ford‘s motion. The appellate court viewed
Following full briefing by the parties and amici curiae, and a few days after oral argument in this court, the parties filed a document advising that they had “reached an agreement to settle the case on terms independent of the outcome of the opinion from this court,” and that “the settlement will
I. FACTS AND PROCEDURE
A. The Underlying Complaint
Berroteran‘s first amended complaint, filed in mid-2014, asserted that in early 2006, after relying on Ford‘s representations that its vehicle was reliable and provided superior power, he purchased a new Ford truck equipped with a defective 6.0-liter diesel engine supplied by Navistar (hereinafter Navistar engine). The complaint alleged that notwithstanding Ford‘s representations, when driving the vehicle, Berroteran experienced breakdowns and lack of power while towing. Moreover, the complaint alleged, Ford‘s attempts to address these problems were unsuccessful, even though Ford had represented that it had fixed the engine. Consequently, Berroteran alleged, he was unable to use the truck for its intended and advertised purposes.
The complaint further alleged that Ford: “(a) rather than identifying and eliminating the root cause of these defects, produced and sold the vehicle to [Berroteran] and other consumers, knowing it contained a defective engine; (b) adopted through its dealers a ‘Band-Aid’ strategy of offering minor, limited repair measures to customers who sought to have the defects remedied, a strategy that reduced Ford‘s warranty expenditures but did not resolve the underlying defects and, in fact, helped to conceal the defects until the applicable warranties expired; and (c) intentionally and fraudulently concealed from [Berroteran] . . . these inherent defects prior to the sale or any time thereafter.” The complaint claimed that “Ford was aware of its inability to repair the defects” in the Navistar engine, and asserted causes of action for fraud, negligent misrepresentation, violation of the Consumers Legal Remedies Act (
B. Earlier Litigation Against Ford Concerning the Navistar Engine, and the Resulting 10 Videotaped Depositions
1. The federal consolidated class action complaint and the six depositions related to that and predecessor federal suits
The 2011 operative federal consolidated class action complaint2 alleged defects in the diesel engine supplied by Navistar that Ford installed in various vehicles between 2003 and 2007. That complaint, foreshadowing those subsequently filed by others in California (including Berroteran) who opted out of the federal consolidated class action, alleged that “Ford knew from the outset that there were severe and pervasive design, manufacturing, and quality issues plaguing” the Navistar engine; yet Ford “never disclosed any of these issues to consumers” and failed to authorize necessary major engine repairs for its customers during the warranty period of their vehicles. In other words, the complaint asserted, Ford “simply kicked the can down the road” until each warranty expired, so that ” ‘the customer — not Ford — would pay for repairs.’ ”
The federal consolidated class action ultimately settled — preliminarily in late 2012, and finally in mid-2013. As noted, Berroteran, like many others, opted out and pursued separate suits.
In connection with the federal In re Navistar (see ante, fn. 2) and related predecessor federal suits in Illinois3 and Texas,4 various Ford employees and
We will briefly describe, as representative, the deposition of John Koszewnik, conducted in February 2011 in connection with the Illinois federal litigation (see ante, fn. 3). Koszewnik had been Ford‘s director of North American diesel products, responsible for investigating “failures in the field” of the Navistar engine and identifying related “root cause[s] and corrective actions.” He testified that four troublesome components had been “injectors, turbochargers, EGR [exhaust gas recirculation] valves, [and] EGR coolers.” He addressed related warranty problems with the engine and recounted that, as of February 2006, Ford had incurred “about 36 million [dollars] a year,” and “as high as 5 million a month,” in warranty expenses relating to the engine‘s suspect EGR valve. And yet, he testified, Ford refused to approve a replacement EGR valve or to notify owners that they should seek such an upgrade.
2. Four depositions of three other Ford employees arising under three California “opt-out” suits5
The subsequent videotaped depositions were conducted in California in 2015–2017 — many years after, and indeed, in light of, the above-described depositions in the federal matters. Each deponent was designated by Ford as a “person most qualified” (PMQ). Again Ford‘s counsel consulted with each witness prior to, and represented that witness at, each deposition. Ford‘s counsel once more raised objections at each deposition — and at the conclusion of the first two depositions, briefly asked focused questions of the witness to clarify certain testimony.
Eric Kalis appeared as Ford‘s PMQ concerning various matters, including the internal review and approval process conducted by Ford personnel of marketing materials provided by Ford to its dealers and customers to facilitate vehicle sales. He further testified as Ford‘s custodian of records. When examples of marketing publications (Ford‘s “Frontline Magazine,” “Source Book,” “Trailer Tow Guide,” and sales brochures) were shown to him, Kalis confirmed that each appeared to be a Ford business record. He also presented a USB drive, referred to as “the compilation,” reflecting search results concerning “12 million pages” of Ford documents that had been produced in connection with various prior Navistar engine opt-out lawsuits, and that had been introduced as trial exhibits in yet another related California opt-out case, Margeson v. Ford Motor Company.6 The USB drive included emails by and to Ford employees whose depositions are at issue in the present case. In his testimony Kalis addressed those same documents and email communications, along with substantive issues such as effects of an improperly functioning turbocharger on horsepower and towing. At the close of Kalis’ deposition, following an extended off-the-record discussion, counsel for both parties discussed (1) a stipulation regarding the documents referred to earlier in the deposition and (2) agreement about future use of Kalis’ deposition testimony.
Regarding the documents, Ford‘s counsel stipulated that all of the marketing materials and, with certain exceptions, most other files contained within the USB drive — including the emails by and to Ford employees — were indeed Ford “business records for California hearsay purposes, and are true and correct copies of Ford documents.” Next, after conferring with Ford‘s counsel, Kalis certified that these documents were “created in the normal course of business,” are “true and correct,” and constitute Ford “business records.” Those exhibits were in turn made an exhibit to Kalis’ deposition.
The parties then addressed the scope of the stipulation regarding the Ford documents, and in connection with that discussion they also addressed the
After further discussion the parties agreed to “use a copy of the [deposition] transcript and a copy of the video for all purposes, for all [Navistar] 6.0[-liter diesel engine] cases in which [the Erskine] firm” is “currently counsel of record” — listing, in addition to Brown, a few other then-pending California opt-out cases (not including or mentioning the present matter). Defense counsel also reiterated that the stipulation concerning use of the documents was similarly circumscribed.7 In response to renewed questioning by the plaintiff‘s counsel, Kalis clarified that, so far as he was aware, the Ford business records to which he had confirmed authenticity were relevant to “all [Navistar] 6.0 diesel” engines “in general,” and his conclusion about authenticity of those documents would be the same in any case in which the same issue arose. Finally, all counsel agreed to meet and confer within two weeks about “expanding this stipulation on the use of these transcripts and the video for use in all [Navistar] 6.0 litigation matters, irrespective of” who is counsel of record. And yet the record reflects, and we are advised of, no such further agreement.
C. Berroteran‘s Designation of Passages from the 10 Video Depositions and Ford‘s Motion in Limine to Exclude
Berroteran designated various passages of the earlier described video depositions, stating that he planned to play them at trial. Relatedly, he also
As observed earlier,
In opposition, Berroteran asserted, “[t]he deposition testimony . . . has been admitted in four jury trials in the past year and has been submitted to countless courts in connection with summary judgment motions, pretrial motions, discovery motions. . . . It is highly relevant, as it directly concerns the subject matter of this case. Ford and its army of lawyers had unlimited opportunities to prepare those ‘Ford company witnesses’ in advance of their testimony, had every opportunity to examine those witnesses during the depositions, and had the same or similar motive as Ford has in this case.”
In arguing that Ford lacked similarity of interest and motive to examine the witnesses at the depositions as it would have at trial, counsel for Ford focused on an asserted dissimilarity between Ford‘s position in the depositions and in the present litigation. In this regard counsel stated repeatedly that at least some of the depositions at issue arose in the context of Ford‘s own separate lawsuit against “Navistar . . . for breach of contract.” Based on that, counsel stressed, “it doesn‘t make sense that we would have a motive to cross-examine our own witnesses in a suit by Ford against Navistar for breach of contract.” (Italics added.) In fact, however, as our own review of the 10 depositions sought to be introduced reveals, none arose in that breach of contract suit setting — and instead all arose in the context of consumer actions against Ford.
In a similar vein, Ford‘s counsel repeatedly argued that Ford had no motive to cross-examine its own witnesses with regard to the multidistrict consolidated class action suit because those depositions were “limited to class issues” over a span of model years and, counsel asserted, discovery in that litigation was confined to those “class issues only” and “not merits issues.” And yet, as we have confirmed by our own review of each deposition, in none was the testimony limited to class certification issues such as commonality and typicality — and instead each repeatedly, and in considerable detail, addressed “merits issues.” Indeed, as counsel for plaintiff Berroteran stressed, the operative complaint in the present suit (and also in all other opt-out suits) was modeled on the federal complaint — and hence, counsel asserted, the depositions in the prior federal action covered “the same subject matter.” Relatedly, counsel also asserted, without opposition, that in each of the four other recent California opt-out trials at which the depositions had been admitted, “Ford has [simply] counter-designated from the same transcripts,” instead of calling the deponents as live trial witnesses.
In response, the trial court stated: “My ruling would be to grant the motion in limine and exclude those deposition transcripts for the reasons argued. In terms of . . . the broadness of the other cases and lawsuits and specifics of our particular case and whether or not those cases address the specifics of our particular case — I just don‘t think they [do]. . . . [T]hey involve multiple issues that are not really at issue here.” Yet, after counsel for Berroteran indicated that “this is going to be an issue on appeal,” the trial court asked
The Court of Appeal issued an alternative writ requiring the trial court either to vacate its ruling granting the motion to exclude or show cause why a peremptory writ of mandate ordering the trial court to vacate its ruling should not issue. The trial court indicated that it would not vacate its ruling. After briefing and argument, the appellate court determined that the 10 prior depositions were admissible under
A. The Comment Concerning Section 1291
The Legislature has provided unusually specific guidance concerning
(See generally Cal. Law Revision Com., Evid. Code with Official Comments (Aug. 1965) at p. 1007 [“These Comments are especially significant in the legislative history of the Evidence Code because of the consideration given them by the legislative committees that considered the code“].)
The resulting official comment concerning
In its specific discussion of the statute‘s subdivision (a)(2) — the provision applicable in this case14 — the comment is considerably more detailed. It states in full: “Paragraph (2) of subdivision (a) of Section 1291 provides for the admissibility of former testimony where the party against whom it is now offered had the right and opportunity in the former proceeding to cross-examine the declarant with an interest and motive similar to that which he now has. Since the party has had his opportunity to cross-examine, the primary objection to hearsay evidence — lack of opportunity to cross-examine the declarant — is not applicable. On the other hand, paragraph (2) does not make the former testimony admissible where the party against whom it is offered did not have a similar interest and motive to cross-examine the declarant. The determination of similarity of interest and motive in cross-examination should be based on practical considerations and not merely on the similarity of the party‘s position in the two cases. For example, testimony contained in a deposition that was taken, but not offered in evidence at the trial, in a different action should be excluded if the judge determines that the deposition was taken for discovery purposes and that the party did not subject the witness to a thorough cross-examination because he sought to avoid a premature revelation of the weakness in the testimony of the witness or in the adverse party‘s case. In such a situation, the party‘s interest and motive for cross-examination on the previous occasion would have been substantially different from his present interest and motive.” (Com., ¶ 4, italics added.)
B. Wahlgren
Nearly 20 years after the adoption of
Without addressing or describing the nature of the prior unrelated action in which the depositions had been taken, the Court of Appeal explained that the deponents were officers of the pool manufacturer, and “their testimony concerned [the manufacturer defendant‘s] policy of placing labels on pools which alerted users to the dangers of diving.” (Wahlgren, supra, 151 Cal.App.3d at p. 545.) The appellate court affirmed the trial court‘s order of exclusion, determining that the deposition testimony was inadmissible under
informed by the section’s comment quoted earlier.15 In the process, the court asserted that as a general matter, a party’s interest and motive to cross-examine its own witnesses at a deposition is different from the party’s interest and motive to do so at trial.
The key passage from the brief opinion in Wahlgren reads in full: ” ‘[A] determination of similarity of interest and motive . . . should be based on practical considerations and not merely on the similarity of the party’s position in the two cases.’ [Citing the official comment concerning
In other words, the decision in Wahlgren effectively construed
C. The Court of Appeal Decision Below
In determining that the trial court abused its discretion by excluding the 10 former depositions, the Court of Appeal acknowledged that Wahlgren “arguably supported Ford’s argument and the trial court’s conclusion.” (Berroteran, supra, 41 Cal.App.5th at p. 529.) Yet, the appellate court explained, it disagreed with what it characterized as ”Wahlgren’s categorical bar to admitting deposition testimony under
In articulating its disagreement with Wahlgren and reaching its conclusion that the trial court abused its discretion in granting Ford’s motion to exclude the proffered depositions, the Court of Appeal was heavily influenced by the subsequently enacted and similarly-worded federal counterpart to
Indeed, the appellate court reasoned, federal decisions construing the federal rule should inform interpretation of the previously-enacted state statute. The court determined, after surveying some of those cases, that under the federal rule, “former deposition testimony is not categorically excluded based on an assumption that a motive to examine a witness differs during deposition and at trial” (Berroteran, supra, 41 Cal.App.5th at p. 531) — and that ” ‘[a]s a general rule, a party’s decision to limit cross-examination in a discovery deposition is a strategic choice and does not preclude his adversary’s use of the deposition at a subsequent proceeding.’ ” (Id., quoting Hendrix v. Raybestos-Manhattan, Inc. (11th Cir. 1985) 776 F.2d 1492, 1506 [observing that pretrial depositions can serve not only as discovery, but also to preserve testimony that might be unavailable at trial].)
Ultimately, the Court of Appeal relegated to a footnote the Legislature’s official comment concerning
Having reached this conclusion, the appellate court found it unnecessary to address other contentions raised by Berroteran.19
We first consider
A. As Wahlgren Implied, Section 1291(a)(2) Creates a General Rule Against Admission of Testimony from a Prior Civil Discovery Deposition
As noted,
As observed earlier, the comment distinguishes trial testimony from deposition testimony and recognizes, in effect, a general rule in favor of introducing prior trial testimony that is otherwise within the rule: “[I]f a series of cases arises involving several plaintiffs and but one defendant, Section 1291 permits testimony given in the first trial to be used against the defendant in a later trial if the conditions of admissibility stated in the section are met.” (Com., ¶ 1.) This is consistent with the language of the statute’s subdivision (a)(2); the defendant in a series of trials involving similar claims commonly has both the opportunity to cross-examine witnesses and a similar interest and motive to do so in each trial.
By contrast, the comment creates no such clear path regarding prior deposition testimony. As noted, the comment explains that determination of similarity of interest and motive in cross-examination “should be based on practical considerations and not merely on the similarity of the party’s position in the two cases.” (Com., ¶ 4.) Moreover, it says, “testimony contained in a deposition that was taken, but not offered in evidence at the trial, in a different action should be excluded if the judge determines that the deposition was taken for discovery purposes and that the party did not subject the witness to a thorough cross-examination because he sought to avoid a premature revelation of the weakness in the testimony of the witness or in the adverse party’s case. In such a situation, the party’s interest and motive for cross-examination on the previous occasion would have been substantially different from his present interest and motive.” (Ibid., italics added.)
In drawing a distinction between the treatment of prior trial and deposition testimony, the official comment relies on and highlights the different functions of trial and deposition testimony. Trial testimony is presented for the related purposes of providing an evidentiary foundation for
As these different purposes might suggest, the “interest and motive” of the party opponent in cross-examination at a discovery deposition is generally not, as required by
Even if there were an interest and motive for cross-examination by the opposing party at a discovery deposition, the opportunity for full and searching cross-examination may, as a practical matter, be absent. Cross-examination at trial is typically undertaken only after discovery is complete, when documents and testimony available to the parties have become known. Such cross-examination is generally conducted using the documents produced
For these reasons, as alluded to above, leading treatises are consistent in discouraging opposing parties from conducting cross-examination at a discovery deposition, at least when the witness being deposed is aligned in interest with the opposing party. For example, Discovery Practice, supra, Questioning the Deponent, section 18.08, observes: “In what situations should you question your client deponent? The best question may be no question — the sooner the deposition is over, the better. Ordinarily, your preparation of the deponent does not include any preparation of questions. If you ask questions, you run the risk of the deponent’s not understanding why you are asking a question, or responding to it in a fashion different from what you expected. Further, the more questions you ask, the more information you provide the other side; the more questions you ask, the more time the other attorney has to think about what else to ask; the more questions you ask, the more chance the other attorney has to ask still more questions.” (Accord, Depositions in California, supra, Cross-examining own client, § 7:40, p. 277 [“Generally, it is not a good idea to cross-examine one’s own client even though counsel has the right to do so. [Citation.] Through counsel’s cross-examination, counsel may give the examining attorney leads or ideas for further areas of inquiry, and damaging admissions may be made.“]; Civil Procedure Before Trial, supra, ¶ 8:711, p. 8E-111 [“Attorneys often decide not to ask questions at depositions of their own clients or witnesses favorable to their side. Since there is no judge or jury present, there is usually nothing to be gained by bringing out favorable testimony via ‘cross-examination.’ Moreover, it may even do harm by ‘educating’ opposing counsel, or by allowing them to ask questions about matters they had forgotten to inquire about“]; Lisnek & Kaufman, Depositions: Procedure, Strategy & Technique (2021–2022 ed.) Rehabilitation — Questioning the Deponent, § 11:10 [“When
As we have indicated, however, not all depositions are conducted for discovery purposes, or solely for discovery. Among other purposes, depositions may preserve testimony when there is reason to believe the deponent will not later be called at trial — whether due to ill health or because of statutory provisions that allow for the use of deposition testimony at trial, given other considerations about witness availability. (
In sum, and for the reasons discussed, the official comment concerning
B. The Court of Appeal’s Contrary Reasoning is Unpersuasive
As noted, the appellate court’s conclusion was heavily influenced by its understanding of the similarly-worded federal counterpart to
But the Court of Appeal derived another rule from federal law — the proposition that ” ‘a party’s decision to limit cross-examination in a discovery deposition is a strategic choice and does not preclude his adversary’s use of the deposition at a subsequent proceeding.’ ” (Berroteran, supra, 41 Cal.App.5th at p. 531, quoting Hendrix v. Raybestos-Manhattan Inc., supra, 776 F.2d at p. 1506, and also citing Pearl v. Keystone Consolidated Industries, Inc. (7th Cir. 1989) 884 F.2d 1047, 1052.) The Court of Appeal then cited
These and analogous criminal cases concern testimony arising in earlier adjudicative hearings at which a defendant, who may be well-armed with discovery already received from the prosecution,24 often has an interest and motive to examine the witness in order to avoid being bound over for trial by the presiding magistrate. In that setting, there frequently may be reason to find that similar interest and motive exist at the preliminary hearing and trial
The Court of Appeal discounted Wahlgren’s assertion that “[a]ll respected authorities . . . agree that given the [deposition] hearing’s limited purpose and utility, examination of one’s own client is to be avoided” (Wahlgren, supra, 151 Cal.App.3d at p. 546) — and it criticized that decision for failing to cite any support for that proposition. (Berroteran, supra, 41 Cal.App.5th at p. 533.) As demonstrated above, however, Wahlgren’s observation about discovery depositions, even if not backed by citations in that opinion, is correct. There was and remains overwhelming support for the proposition that defending counsel at a civil discovery deposition typically have strategic reasons to avoid questioning an aligned witness. The Court of Appeal’s conclusion that Wahlgren is wrong or outdated in this respect is belied by prominent treatises and practice guides such as those discussed previously.
Moreover, as Ford and its amici curiae correctly observe, videotaping, in itself, does not affect the decision whether to examine an aligned witness at deposition. The determination to videotape is ordinarily made by the deposing party, which must specify videotaping in the deposition notice (
Finally, as noted earlier, the Court of Appeal disregarded the Legislature’s official comment concerning
There are multiple problems with this analysis. First, as related ante, part II.A (and fn. 12), in adopting
Second, and fundamentally, the Court of Appeal’s stated reason for failing to honor the comment fails. Absent an agreement among the parties concerning use of the deposition, the burden to establish the conditions of the exception to the hearsay rule articulated by
Indeed, the appellate court’s undue focus on Ford’s similarity of position in the various settings also led it to assert, repeatedly, that at each of the depositions “Ford had a similar motive to disprove the allegations of misconduct, and knowledge, all of which centered around the 6.0-liter diesel engine.” (Berroteran, supra, 41 Cal.App.5th at p. 534, italics “a similar motive to examine each of the nine deponents.” (Id., at p. 534, fn. omitted.) And yet Ford — the opponent of introduction, which had appeared at the non-adjudicatory civil deposition representing an aligned witness — bore no burden to prove that it lacked a similar interest and motive to examine its witnesses at that deposition. The burden to prove that Ford had a similar interest and motive rested with the proponent, Berroteran.added.)29 And yet a party would be unlikely to have a motive or reason at a deposition of its own witness to disprove anything. As Ford and its supporting amici curiae observe, concluding otherwise would substantially expand and complicate deposition practice, forcing it to take on the character of a full-blown liability trial. For the reasons discussed above, the contrary views of Berroteran and amici curiae on his behalf are based on fundamental misconceptions concerning the practical considerations that must inform the requirements of
Perhaps the Court of Appeal below was persuaded by Berroteran’s repeated assertions that Ford’s litigation position suggested “gamesmanship”: Although Ford had not objected to introduction of the designated parts of these depositions in prior California opt-out cases, in this case, on the eve of trial, Ford asserted its purported rights under
Finally, even if, as the Court of Appeal appears to have suggested, a presumption favoring admitting hearsay under
IV. APPROACH THAT A TRIAL COURT SHOULD UNDERTAKE IN THIS SETTING
We now address the process a trial court should undertake when determining whether, under the exception to the hearsay rule set out in
In light of the special significance of the Legislature’s official comment described ante, part II.A (and fn. 12), a trial court addressing a motion to exclude under
(A.) Determining whether the parties intended, at the outset, that the deposition serve as trial testimony.
As an initial matter, the court should determine whether the parties manifested an intent to take the deposition for the purpose of preserving the witness’s testimony as a proxy for trial testimony. If such intent is established, it may be inferred that all counsel had, at that deposition, a right and opportunity to examine the declarant with an interest and motive similar to that which the party would have at trial in a future case — and hence this key requirement of
(B.) Determining whether the parties subsequently reached agreement concerning use of the deposition at trial in that case, or in other cases.
In many circumstances there will be no express agreement reached at the beginning of the deposition concerning its future use, or evidence that it was intended to be anything other than an ordinary discovery deposition. The court should nevertheless inquire whether the proponent of admission has shown that the parties subsequently reached agreement concerning use to which the deposition would be put, as reflected in, for example, the reporter’s transcript of the deposition, or any later memorializing document. Moreover, if, as recounted ante, part I.B.2 (regarding the Kalis deposition taken in the Brown suit), the parties reach agreement at the close of a deposition concerning use in other specific related litigation, yet not regarding the litigation in which introduction is presently sought, the trial court should consider whether the now-objecting party, by having agreed to use of the deposition testimony in some future related case, contemporaneously implied that, at the deposition at issue, it did indeed have a right and opportunity to examine the declarant with an interest and motive similar to that which it would have at trial in the present case.30
(C.) Key “practical considerations.”
In circumstances not falling within (A) or (B) above, and hence in which it is not evident that the parties understood that a deposition was intended for purposes other than discovery, the resulting testimony is, as Wahlgren, supra, 151 Cal.App.3d 543, implied, generally not made admissible by
As observed earlier, parties may not be in a position to conduct cross-examination early in the discovery process. The same is not necessarily true of depositions taken after the parties have been educated by discovery conducted in earlier, similar lawsuits, as is the situation in this case. In addition, there may be special circumstances that create an incentive for cross-examination. Anticipating a mediation or settlement conference, for example, a party may attempt during a deposition to demonstrate the weaknesses in an opponent’s case by conducting aggressive cross-examination.
(2.) The relationship of the deponent and the opposing party.
A party rarely has an interest and motive to cross-examine deponents with whom the party has a close or aligned relationship, such as officers and employees of a corporation or family members of an individual — although that interest may be similarly low or minimal at trial.31 Correspondingly, the likelihood of a substantial interest in cross-examination may increase as the strength of the relationship between the deponent and the opposing party diminishes or if it is antagonistic, as is sometimes the case concerning former employees of a corporation or estranged friends and relatives of an individual.
(3.) The anticipated availability of the deponent at trial in the proceeding in which the deposition was taken, and the statutory context.
If the witness was expected to be available to testify at trial in the litigation for which the deposition was taken, this may have diminished the opposing party’s motive to cross-examine. Conversely, if there was reason to believe that the witness would be unavailable, for example because the witness was not amenable to subpoena or was in ill health, the court should consider whether the now-objecting party would have had reason to anticipate that the deposition testimony might serve as a proxy for substantive testimony at trial — and have a corresponding motive and interest to treat it as such. Likewise, the motivation and interest in cross-examination may be enhanced when a statutory rule (such as those set out in
Conduct such as compelling out-of-state witnesses to appear for a videotaped deposition, and references made at the ensuing deposition to “testimony for the jury,” particularly by the party opposing admission, may contribute to a showing that testimony preservation was among the purposes of a deposition. Relatedly, if the party opposing admission actually undertook an apparently searching examination of the deponent, the court may determine that such conduct suggests an interest and motive with respect to cross-examination similar to that which the party would have at trial in the present case. Conversely, the absence of any examination of the deponent, or the limited scope of any such examination, may suggest that the party lacked the same interest and motive for cross-examination that would exist at trial in the present case.32
(5.) The particular designated testimony.
In some circumstances, the proponent of admission may claim that the opposing party had an interest and motive to cross-examine a deponent concerning specific testimony sought to be admitted. As suggested above, there are tactical reasons why an opposing party may elect not to examine a deposition witness about particular testimony, regardless of its content. Standing alone, therefore, the adverse or confusing nature of particular deposition testimony does not necessarily demonstrate an interest and motive to cross-examine at the deposition. Assuming, however, that the proponent is able to demonstrate with respect to particular testimony that the opposing party in fact had an interest and motive to examine at the deposition similar to that at trial, the trial court may conclude that this element of admission is satisfied with respect to the designated testimony.
(6.) “Similarity of position.”
When, as appears in the present case, respective suits are shown to be substantially parallel, and the substance of the related deposition testimony correspondingly alike, nevertheless no affirmative presumption concerning similarity of interest and motive thereby arises. Instead, and although similarity of a party’s position is a relevant factor in assessing that party’s interest and motive in cross-examining at a deposition compared with at a subsequent trial, it is only a factor. As the Legislature’s official comment stresses, “[t]he determination of similarity of
Finally, with regard to the trial court’s review and determination, it should make a record — orally, or preferably in writing — reflecting its reasoning regarding the key issue of similarity of motive and interest. (Cf. Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329, 358 [a trial “should create a record that facilitates meaningful appellate review”].)
V. CONCLUSIONS AND DISPOSITION
The Court of Appeal below construed Wahlgren, supra, 151 Cal.App.3d 543, as establishing a “categorical bar to admitting deposition testimony under section 1291.” (Berroteran, supra, 41 Cal.App.5th at p. 529, italics added; see also id., p. 533.) We do not read Wahlgren as announcing any such definitive holding. Instead, as explained previously, we view that case as appropriately construing
For the reasons set out above, we reverse the Court of Appeal’s judgment.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
MANELLA, J.*